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Public Law

Rule of Law
THE RULE OF LAW
The rule of law as stated by Aristotle the rule of law is preferable to the rule
of any individual. This captures the idea that the rulers as well as the ruled
should be subject to law. The traditional approach to the rule of law is found
in Diceys work.

Dicey: the rule of signifies three basic concepts:


1. The absence of arbitrary power this means that no one is punishable
except for a distinct breach of the law. Dicey contrasts the rule of law
with every system of government based on the exercise of persons of
authority of wide arbitrary or discretionary powers.
2. Equality before the law this means that no man is above the law but
that every man whatever his rank or condition is subject to the
ordinary law of the realm.
3. The protection of individual rights
From a Caribbean perspective, Fiadjoe states that the rule of law has come
to mean the exercise of state power according to law and the subjugation of
state power to the constitution. The phrase the rule of law is thus a useful
compendium to define the bundle of citizens rights or legitimate
expectations to hold the state accountable for its actions.

The Universal Declaration on Human Rights, which was adopted by the UN


General Assembly in 1948, refers to the rule of law and the Declaration of
Delhi, in 1959, best expresses this doctrine. According to this declaration,
the rule of law relates to the following:

The Legislature the right to representative and responsible


government.
The Executive the executive should be subject to independent judicial
control.

The Judiciary and the Legal Profession this requires the independence
of the judiciary and an organized and autonomous legal profession.
The Criminal process this involves a right to a fair trial, certainty in
the criminal law and other rules of fairness including the absence of
cruel punishments.
A citizen who is wronged should have a remedy against the state.

Commissioner of Police v. CSU [2001] 2 LRC 85

Justice Chinghengo admitted that at a philosophical level, there are different


schools of thought as to what the rule of law encompasses. However, at a
practical level, the rule of law is a norm or standard, which means that
everyone must be subject to a shared set of rules that are applied universally
and even-handedly. Also, those who are affected by official action should be
able to rely on the law to protect their interests. The rule of law is therefore
viewed as a rational or societal ideal.

Rule of Law and the text of the Constitutions


In looking at the rule of law and the text of the constitution the first thing to
look at is the preamble. Jamaica does not have a preamble.

The use of the term rule of law in the Constitution is not conclusive
evidence that a jurisdiction is governed by the rule of law. What is
important is whether the principles enshrined in the doctrine of the
rule of law are actually present in that constitution.

Supremacy of the constitution: According to Alexis this is consistent


with the rule of law because it would be difficult to reconcile the
omnipotence of Parliament with the rule of law.

The Bill of Rights


Caribbean constitutions contain provision dealing with fundamental rights
and freedoms. This means that the law with clarity and certainty informs the
individual of his rights and freedoms and what limitations may be imposed
on such liberties in the public interest. It also provides individuals with the
right of redress for their breach.

Separation of powers
DPP v. Mollison
Whatever overlap there may be under constitutions on the Westminster
model between the exercise of executive and legislative powers, the
separation between the exercise of judicial powers on the one hand and
legislative and executive powers on the other is total or effectively so. Such
separation, based on the rule of law, was recently described by Lord Steyn as
a characteristic feature of democracies: R (Anderson) v. Secretary of State
for the Home Department [2002] 3 WLR 1800. The appellant prisoner was
serving a mandatory life sentence for murder. Both the trial judge and the
Lord Chief Justice had recommended that he serve a minimum term of 15
years to meet the requirements of retribution and general deterrence, but
the Secretary of State set the tariff at 20 years. The prisoner could not be
considered by the Parole Board for release on life licence until he had
completed the tariff. The prisoner, who was nearing the end of the judicially
recommended tariff period, applied for judicial review of the Secretary of
States decision to increase the tariff.
The Divisional Court dismissed the application, and the Court of Appeal
affirmed its decision. On his subsequent appeal to the House of Lords, the
prisoner contended that the Secretary of State should not fix the tariff for a
convicted murderer since that power was incompatible with a persons right,
under art 6(1)b of the European Convention for the Protection of Human
Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human
Rights Act 1998), to have his sentence imposed by an independent and
impartial tribunal. In response, the Secretary of State contended that, in
fixing the tariff for a convicted murderer, he was administering a sentence
already imposed, not imposing a sentence. In the event of the prisoners
submission being preferred, a further issue arose as to the relief to which he

was entitled.

In particular, their Lordships were required to determine


whether it was possible, under s 3c of the 1998 Act, to construe s 29 of the
1997 Act in a manner that was compatible with the convention by reading it
as precluding participation by the Secretary of State.
Held (1) The Secretary of State should not play any part in fixing the tariff
of a convicted murderer, even if he did no more than confirm what the
judges had recommended. The fixing of such a tariff was a sentencing
exercise, involving an assessment of the quantum of punishment that the
convicted murderer should undergo. The Secretary of States role was
objectionable because he was not independent of the executive. The
complete functional separation of the judiciary from the executive
was fundamental since the rule of law depended on it. It followed that
the Secretary of States practice of setting the tariff for convicted murderers
was incompatible with art 6(1). Accordingly, the appeal would be allowed,
and the issue of relief therefore arose.
(2) It was not possible to read s 29 of the 1997 Act as precluding
participation by the Secretary of State. A conclusion to the contrary would
not be judicial interpretation but judicial vandalism, giving s 29 an effect
quite different from that which Parliament had intended and going well
beyond any interpretative process sanctioned by s 3 of the 1998 Act. It
followed in the instant case that the only relief that the prisoner could obtain
was a declaration of incompatibility. Accordingly, their Lordships would
declare that s 29 of the 1997 Act was incompatible with the right, under art 6
of the convention, to have a sentence imposed by an independent and
impartial tribunal in that the Secretary of State was acting so as to give
effect to s 29 when he himself decided on the minimum period that had to be
served by a mandatory life sentence prisoner before he was considered for
release on life licence.
Separation of powers is consistent with the rule of law since it helps to
prevent the assertion of arbitrary power through checks and balances on
each arm of government.

Due Process Clause

Lewis v. AG of Jamaica
It was said that you couldnt have protection of the law unless you have due
process of the law. The two terms are synonymous. The due protection of
the law guaranteed in s.13 of the Jamaican constitution, and so the people
are endowed with constitutional protection to the concept of procedural
fairness.

Held - Dismissing the cross-appeal (Lord Hoffmann dissenting), that the right
to the protection of the law under section 13(a) of the Constitution and at
common law was in effect the same as an entitlement to due process of law;
that, although ratified but unincorporated treaties did not ordinarily create
rights for individuals enforceable in domestic courts, when the state acceded
to such treaties and allowed individuals to petition international human
rights bodies the protection of the law conferred by section 13 entitled a
petitioner to complete that procedure and to obtain the reports of such
bodies for consideration by the JPC before determination of the application
for mercy, and to a stay of execution until those reports had been received
and considered; that where a petition had been lodged with such a body
execution of a sentence of death consequent upon a decision of the JPC
made without consideration of that body's report would therefore be
unlawful; and that, since it was reasonable to allow 18 months for
applications to international human rights bodies, the lesser time limits
imposed by the Governor General in the instructions contravened the rules of
natural justice and were unlawful

In Thomas v. Baptiste, Lord Thomas said due process of law is a


compendious expression. It invokes the concept of the rule of law itself and
a universally accepted. fairness. The due process clause must be broadly
interpreted and that the right to be allowed to complete a current legal
process without having it rendered nugatory by executive action before it is
completed, is part of the fundamental concept of due process. Look at s.13
of the constitution.

Facts

The applicants were charged with murder and spent a number of years in
prison after being sentenced to death. Held - Allowing the appeals in part
(Lord Goff of Chieveley and Lord Hobhouse of Woodborough dissenting), that
due process of law in section 4(a) of the Constitution incorporated the
concept of procedural fairness not only in the trial but also in the appellate
process; that all litigants, including condemned men, had the general
common law right, affirmed by section 4(a), not to have the result of any
pending appellate or other legal process rendered nugatory by executive
action before completion; that, although the terms of the American
Convention on Human Rights had not been incorporated into domestic
legislation, by ratifying a treaty which provided for individual access to the
commission the government had made that process for the time being part
of the domestic criminal justice system so that the due process provision in
section 4(a) applied; that even if the government were entitled to curtail
such rights of access or to prescribe conditions for their exercise for the
future, section 4(a) prevented the government from doing so retrospectively
so as to affect existing applications, and, although the applicants' petitions
had been lodged after publication of the instructions, the invalidity of the
instructions prevented the government from relying on them to justify
carrying out the death sentences passed on the applicants before petitions
were determined, and to do so would infringe the right to due process
guaranteed by section 4(a); and that, accordingly, their executions would be
stayed until the current petitions to the commission had been determined
and the rulings of the commission and the Inter-American Court of Human
Rights had been considered by the relevant authorities of Trinidad and
Tobago.

Independent Judiciary:
This is an indispensable pre-requisite of a free society under the rule of law.
Caribbean constitutions contain provisions, which support the independence
of the judiciary including those relating to the appointment and removal of
judges, the security of their tenure and the scope of their jurisdiction.

The Rule of Law as certainty

Overruling precedent:
Law cannot rule us unless the law is fairly stable and certain. This means
that we must be able to feel secure that the law will not change arbitrarily
and without just cause. This brings into scrutiny the rules governing the
overruling of cases. But the interests of justice will always trump the
certainty of stable precedent.

The majority in the PC in Lewis v. AG had said that the need for legal
certainty, demands that they should be very reluctant to depart from recent,
fully reasoned decisions unless there are strong grounds to do so. But no
less should they be prepared to do so if they are satisfied that the earlier
cases adopted a wrong approach. In such a case rigid adherence to the rule
of stare decisis is not justified. Under the concept of rule of law as certainty,
Lord Hoffman in Lewis v. AG said that if the HL or PC could overrule
precedent, it would undermine the rule of law. I entirely accept that the
Board is not, as a matter of law, bound by its previous decisions But the
power of final interpretation of a constitution must be handled with care. If
the Board feels able to depart from a previous decision simply because its
members on a given occasion have a "doctrinal disposition to come out
differently", the rule of law itself will be damaged and there will be no
stability in the administration of justice in the Caribbean. Lord Hoffman
said that there should be certain guidelines that should be followed when a
court decides to overrule a case.

Vagueness
The principle of legality requires that an offence against the criminal law
must be defined with sufficient clarity to enable a person to judge whether
his acts or omissions will fall within it and render him liable to prosecution.
Legislation, which is hopelessly vague, must be struck down as

unconstitutional. However, the fact that a law is expressed in broad terms


does not mean that it must be held to have failed to reach the required
standard. Lord Bingham of Cornhill in R v K said:

The rule of law is not well served if a crime is defined in


terms wide enough to cover conduct which is not regarded as
criminal and it is then left to the prosecuting authorities to
exercise a blanket discretion not to prosecute to avoid
injustice.

There is to be implied in [the above section] the


requirement that in criminal matters any law must be
formulated with sufficient precision to enable the citizen to
regulate his conduct. So the principle of legality applies,
legislation, which is hopelessly vague must be struck down
as unconstitutional. But the precision which is needed to
avoid that result will necessarily vary according to the
subject matter. (Sabapathee v State);

Sabapathee v State
Following the arrest of the appellants co-defendant a search was executed
at the appellants house. A package was found which contained 35 sealed
plastic sachets containing heroin and 50 empty plastic bags. The appellant
was charged with various offences under the Dangerous Drugs Act 1986 in
respect of which it was alleged that, pursuant to section 38, it could be
reasonably inferred that he had been trafficking drugs when he committed
the offences. The co-defendant pleaded guilty to two offences of importing
drugs into Mauritius. The appellant was tried by a judge without a jury and
did not give evidence in his own defence. He was convicted of knowingly
having in his possession 395 grams of heroin and wilfully offering to buy
heroin. Without giving the appellant any further opportunity to give any
evidence the judge went on to make a finding that the appellant had been
engaged in trafficking drugs when he committed the offences.

The appellants appeal to the Court of Appeal was dismissed and he


appealed to the Privy Council against the judges finding that he had been
engaged in trafficking. Held, dismissing the appeal (i) there was nothing in
the language of section 38(2) to indicate a parliamentary intention to depart
from the ordinary common law rule that where direct evidence was not
evident to prove any fact the court could not find that fact established by
reasonable inference from other facts which had been proved: that the
standard of proof for the inference remained proof beyond a reasonable
doubt; the trial judge and the Court of Appeal had applied the correct
standard of proof and had been satisfied beyond a reasonable doubt that the
appellant had been engaged in trafficking.

Per Lord Hope of Craighead The essence of the complaint is that the
statute has failed to define with sufficient clarity the transactions that fall
within, and those that fall outside, the ordinary meaning of the expression
[trafficking] which the section has used to describe the nature of the activity.
The principle of legality requires that an offence against the criminal law
must be defined with sufficient clarity to enable a person to judge whether
his acts or omissions will fall within it and render him liable to prosecution on
the ground that they are criminalThe fact that a law is expressed in broad
terms does not mean that it must be held to have failed to reach the
required standardthe Court of Appeal put the matter correctly in its
judgement in the present case when it said: As we have already adverted to,
the term trafficking cannot be defined with any degree of precision. The
multifarious forms which trafficking can take can be measured only by the
degree of human ingenuity, which, as yet, is unfathomable. No exhaustive
list of instances of trafficking can be enumerated or defined, so the legislator
has left it to the good sense of the courts to decide what amounts to
trafficking on a given set of facts.

Where a law creating a criminal offence is vague the citizen will not be able
to know exactly what conduct is prohibited until the judge trying the case
interprets the law. The rule of law requires obedience to the law but this
necessarily implies that the law is clear.

Retroactivity
At the time you commit an act it must have been a criminal offence.
Barbados s. 18(4) states:

No person shall be held to be guilty of a criminal offence of any act or


omission that did not, at the time it took place, constitute such an
offence, and no penalty shall be imposed for any criminal offence that is
more severe in degree or nature than the most severe penalty that might
have been imposed for that offence at the time when it was committed.
o A retroactive law is one which makes conduct unlawful from the point
in time at which it occurred even though at that time the conduct was
lawful; or imposes or increases the penalty for such conduct.
o The provision in Barbados prohibiting retroactive laws is typical of the
type of provision found in the constitutions of the Commonwealth
Caribbean. In countries, such as TT, where a similar provision does
not appear in the constitution, it is not disputed that he prohibition
against retroactive laws will be found to be comprised in the right to
due process of the law or the right to the protection of the law.
o Retroactive laws infringe the rule of law doctrine because, if permitted,
citizens would never know whether the conduct they engage in today
which is not against the law, may tomorrow be determined to be
unlawful, thereby exposing them to penalties for conduct which they
could not have known was going to be made unlawful. It is considered
grossly unfair to subject people to penalties in such circumstances.
Pierson v Secretary of State for the Home Department
In the early hours of 19 September 1984 at his familys home, a small
farmhouse in North Wales where he lived with his mother and father, he
killed both his parents by shooting them more than once at close range with
a 12-bore shotgun which was kept in the house. The appellant himself called
the police. At first he made admissions consistent with his guilt; but at his
trial he said that he had no memory of the events in question. On 8 July
1985 he was convicted of both murders. Why he killed his parents was
totally unexplained. The judge imposed the mandatory sentence of life

imprisonment. In accordance with the usual practice, he wrote in confidence


to the Home Secretary, describing the crimes as horrifying but also
mystifying.
He expressed the opinion that, failing some dramatic
development or discovery, retribution and deterrence in the appellants case
would require a substantially longer than average period of custody to be
served. The present appeal is concerned with the period of time that the
appellant is required to spend in prison to meet the requirements of
retribution and deterrence, before the possibility of his release on licence can
be considered.
Held - (Lord Browne-Wilkinson and Lord Lloyd of Berwick dissenting)
The Home Secretary had not been entitled to set the appellants tariff period
at 20 years once it was shown that his predecessor in office had proceeded
on the wrong basis by taking into account aggravating characteristics (in
particular premeditation) when originally fixing the tariff, since by doing so
he had not merely left the tariff period unchanged but had in effect increased
the penal element in the appellants sentence. That was beyond the Home
Secretarys powers under s 35 of the 1991 Act because (per Lord Steyn
and Lord Hope of Craighead) his role in fixing the tariff period involved a
decision on punishment analogous to the judicial sentencing function and he
was bound by considerations of substantive fairness to observe the same
common law rule as judges that a lawful sentence, once pronounced, could
not be retrospectively increased. In setting or reviewing a tariff period, the
Home Secretary was (per Lord Steyn) making a decision about the
punishment of the convicted man and was required to act according to the
principle of legality under which it was presumed that he would not exercise
the discretion conferred on him by Parliament by increasing a tariff period
which was already fixed and thereby retrospectively increasing a lawfully
pronounced sentence; and (per Lord Hope of Craighead) it was not open
to him to increase the minimum period simply because he disagreed with the
view formed by his predecessor about the appropriate level of punishment
and decided, on further reflection, that the punishment was inadequate.

Wide discretionary powers


Legislation sometimes vest public authorities with powers passed in broad
language. Because of this, wide discretionary powers have been held to be

reviewable by the courts which require that such powers be exercise in


accordance with the intent and for the purposes of the law which vests the
power in the public official.

o Sometimes a law may vest public authorities with powers cast in broad
language such as if it appears to the Minister that so & so, or if the
Minister is satisfied that. If interpreted literally, expressions such as
these could be said to give public authorities to act on a whim or to
give vent to personal preferences or prejudices. If this were so, then
the law would be administered in an arbitrary fashion and would
depend upon the predilections of the particular public officer who
happens to be the repository of the power at the time. People would
never be certain as to exactly what are required of them or as to what
there entitlements might be.
o For this reason, wide discretionary powers have been held to be
reviewable by the courts, which require that such powers be exercised
in accordance with the intent and for the purposes of the law, which
vets the power in the public official.

Re Manpower Citizens Association per Crane J argued that the courts could
not interfere with the exercise of his discretion. However the court stated
that to accept such proposition would lead to serious inroad on the rule of
law in a democratic society. The rule of law in a democratic society
provides that a discretion is not to be exercised in a capricious and arbitrary
manner, but in a disciplined and responsible way.
Oliver Ashworth (Holdings) Ltd v Ballard (Kent) Ltd
R v Home Secretary, ex parte Venables

The Rule of Law as a legal system that is fair and accessible


Procedural fairness

The right to be heard and the right to an unbiased judge are indispensable to
the rule of law. Law determined by a biased judge is not rule by law at all
but rule in accordance with the judges prejudices. And law determined
without hearing the other side is law, which represents only half of the
picture and so is incomplete and is based on an unfair foundation.

Thomas v. Baptiste Lord Millet in looking at the concept of procedural


fairness stated that in this case because there was a breach of the rules of
fairness and of natural justice the appellants did not enjoy the protection of
the law.

Jaroo v AG of TT
Shah & Lasalle v AG

Rule of Law meaning access to the justice system


In constitutional democracies under the rule of law the courts have assumed
jurisdiction to hear and determine all disputes of a justiciable nature. Look at
Gairy in terms of the types of remedies that are available.

Lewis v AG of Jamaica
Gairy v AG
Johnson v Gore Wood & co (a firm)
R v lord Chancellor, ex parte Lightfoot

Remedies
Kuddus v Chief Constable [2001] 2 WLR 1789:

The plaintiff reported to the police that property had been stolen from his
flat. A police constable assured him that the matter would be investigated,
but subsequently the constable forged the plaintiffs signature on a
statement purporting to be a withdrawal by the plaintiff of his complaint.
The investigation accordingly ceased. The plaintiff brought an action against
the defendant chief officer of police on the ground of his vicarious liability for
the constables misfeasance in public office. He claimed damages,
aggravated damages and exemplary damages.
The defendant, who
admitted the forgery of the constable and that it amounted to a misfeasance
of public office, applied for the plaintiffs claim of exemplary damages to be
struck out on the grounds that exemplary damages were not recoverable for
the tort of misfeasance in public office.

Held, allowing the appeal, Lord Hutton said In my opinion the power to
award exemplary damages in such cases serves to uphold the rule of law
because it makes it clear that the courts will not tolerate such conduct. It
serves to deter such actions in future as such awards will bring home to
officers in command of individual units that discipline must be maintained at
all times.

R v Horseferry Road Magistrates Court, Ex p. Bennett [1993] 3 WLR 90:

The defendant, a citizen of New Zealand who was alleged to have committed
criminal offences in England, was traced to South Africa by the English police
and forcibly returned to England. There was no extradition treaty between
the two countries, and although special arrangements could be made in a
particular case under section 15 of the Extradition Act 1989 no such
proceedings were taken. The defendant claimed he had been kidnapped
from the Republic of South Africa as a result of collusion between the South
African and British police and returned to England, where he was arrested
and brought before a magistrates court to be committed to the Crown Court
for trial. The defendant sought an adjournment to enable him to challenge
the courts jurisdiction. The application was refused and he was committed
for trial. He sought judicial review of the magistrates decision.

The Divisional Court of the Queens Bench, refusing the application, held that
the English court had no power to inquire into the circumstances under which
a person appearing before it had been brought within the jurisdiction. On
appeal by the defendant, it was held per Lord Bridge of Harwich There is,
I think, no principle more basic to any proper system of law than the
maintenance of the rule of law itself. When it is shown that the law
enforcement agency responsible for bringing a prosecution has only been
enabled to do so by participating in violations of international law and of the
laws of another state in order to secure the presence of the accused within
the territorial jurisdiction of the court, I think that the respect for the rule of
law demands that the court take cognisance of that circumstanceIf a
resident in another country is properly extradited here, the time when the
prosecution commences is the time when the authorities here set the
extradition process in motion. By parity of reasoning, if the authorities,
instead of proceeding by way of extradition, having resorted to abduction
that is the effective commencement of the prosecution process and is the
illegal foundation on which it rests. Per Lord Lowry the court, in order
to protect its own process from being degraded and misused, must have the
power to stay proceedings which have come before it and have only been
made possible by acts which offend the courts conscience as being contrary
to the rule of law.
Those acts by providing a morally unacceptable
foundation for the exercise of jurisdiction over the suspect taint the proposed
trial and, if tolerated, will mean that the courts process has been abused.
Rule of Law as the supremacy of law over government

No one is above the law


Litigation between the citizen and the State has always been considered
problematic. In constitutional democracies under the rule of law however,
the courts have assumed jurisdiction to hear and determine all disputes of a
justiciable nature. The principle of equality before the law, where every man
whatever his rank or condition is subject to the ordinary law, must result in
every official from the Prime Minister down to a junior clerk having the same
responsibility for every act done without lawful justification, as any other
citizen. Per Byron CJ Gairy v AG (1999) 59 WIR 174,179;

Executive
Hochoy v. NUGE
In exercise of the powers conferred on him by s 2 of the Commission of
Inquiry Ordinance Cap 7, No 2, the GG of T&T appointed a commission of
inquiry to inquire into certain matters set forth in the Gazette Extraordinary
published on 26 September 1963. An action was brought by the claimants
against the defendant; the appointment was ultra vires and of no effect. The
GG argued that:
1. That as the Queens representative in this country he was
immune from suit, and that the court had no jurisdiction over him
and
2. That the court had no jurisdiction to make the declarations
sought for the reason that O 26, r 5 of RSC was not binding on
the Crown.
It was held that the courts of the country are the Queens Courts and not that
of her representatives and as her immunity from suits in her courts was
essentially personal, the appellants as her representative could lay no claim
to such privilege. When questions arise as to the quality and validity of an
act done by the appellant, on the assumption that it is within his powers as
GG, it is within the province of the courts to determine its true
character and his competence to do it. The appellant as the person
designated by the Ordinance to exercise the statutory power to appoint a
commission of inquiry was a proper defendant to answer the challenge that
the appointment made by him was ultra vires and accordingly null and void.
Wooding CJ said that the Sovereigns immunity is essentially personal
there ought to be no doubt. The courts are the Queens; they are not the
courts of her representative, which the GG is here.

C O Williams v. Blackman
The courts reviewed a decision of cabinet. The Cabinet was acting under a
specific statutory provision; thus they could review their actions under that
provision. The executive is not immune from review.

The applicant submitted tender which was lower than that of the only other
tenderer. The special tenders committee recommended acceptance of the
applicants tender. The matter was considered by cabinet and it decided
under rule 148 of the Rules of 1971 to award the contract to the other
tenderer, recommended by the Minister of Transport and Works, who was a
member of the cabinet. The applicant applied for judicial review. On appeal
to the Privy Council it was held that 1. Allowing the appeal against the AG, that in deciding to accept the
tender of the other tenderer the cabinet had not been exercising its
prerogative power but the specific statutory function conferred on it by
rule 148 of the Rules of 1971; that the exercise of that function was an
administrative act by the cabinet within s 2 of the Administrative
Justice Act since even if not collectively the act of a minister it was the
act of an other authority of the Government of Barbados for the
purposes of that section and was therefore subject to judicial review to
the same extent and on the same grounds as it would have been had it
been conferred on a minister instead of on the cabinet.

Judiciary
Maharaj v. AG of TT the courts reviewed the actions of a judge (Remember
Fundamental Right Lecture).

Rees v Crane:

The respondent was a judge of the High Court of TT and held office subject to
the fundamental right to the protection of the law recognized by s4 (b) of the
Constitution of the Republic of TT and he could only be removed from office
for inability to perform whether from infirmity of mind or body or any other
cause or for misbehaviour in accordance with the constitution.
After
receiving complaints about the respondent the CJ of TT decided not to
include him in the roster of judges who were to sit in court for the following
term. The Chief Justice then instigated proceedings for the respondent to be
removed from office without the respondent being aware of such
proceedings. The respondent applied for judicial review.

The Court of Appeal of TT allowed the appeal by a majority and quashed the
Chief Justices decision to exclude the respondent from the roster. The Privy
Council ruled that:
1. Although the CJ of TT as head of judicial administration there had
power to organise the procedures and sittings of the courts, including
arranging that for a temporary period a particular judge did not sit in a
court, a judge may only be suspended or removed from office in
accordance with the procedure prescribed by s137; that the decision of
the CJ to exclude the defendant from the roster, with no indication as
to when he would sit in court again constituted an indefinite
suspension which he had no power to impose and which could not be
corrected retrospectively by the order of suspension made by the
President under s.137(4).
2. The commission had not treated the respondent fairly in failing to
inform him at that stage of the allegations made against him or to give
him a chance to reply to them in such a way as was appropriate, albeit
not necessarily by an oral hearing; and that accordingly the
commission had acted in breach of the principles of natural justice.

Legislature
Hinds v R [1977] AC 195
Collymore v AG (1967) 12 WIR 5:

Ouster Clauses
There is an argument that they are inconsistent with the rule of law.
Re Alva Bain (unreported) HC, T&T (no 3260 of 1987) AKF 125:

The case law demonstrates that no matter the high office held by anyone
they are bound to comply with the law. However, there are some instances
where the law itself immunizes public authorities from supervision by the
courts. When courts abide by ouster clauses, is this an exception to the rule
of law or an application of the doctrine?

The legality of state action


Liversdige v Anderson [1941] 3 All ER 338, 361:
R v Health Secretary, exp. Imperial Tobacco Ltd [2001] 1 WLR 127, 142:
R v Home Secretary, exp. Muhoyaji [1991] 3 WLR 442, 449:
An important distinguishing feature of our legal system is the requirement
that the onus is on public authorities to demonstrate the legality of their
actions. The practical consequence of this assumption is that in any case,
for example, where a persons liberty is taken away, the onus is on the state
to establish the legal authority by which its agents have acted. Illegality is
assumed until the contrary is proved.

Rule of Law as Equality


Everyone is entitled to the protection of the law
Insurrectionists
Even though they act outside the law, they are still entitled to equality in the
law as no one is below the law.
Shah & Lasalle v AG (1972) 20 WIR 361 at pp 406-407:
On the 21 April 1970, a mutiny occurred in the 1 st Battalion of the TT
Regiment at Teteron Bay where the army encampment was established. It
was organised by Lts Lasalle and Shah with the assistance of a Lt Bazie; and
a number of junior non-commissioned officers and privates participated. The
senior officer in command at Teteron was imprisoned and the mutineers took
control of the arsenal and the Teteron camp. Negotiation between the
representatives of the government and representatives of the mutineers
took place. The dissidents proposed the reappointment of Lt Colonel
Serrette as the commanding officer of the regiment. On April 23, Lt Col
Serrette was dispatched as an emissary of the Prime Minister to visit the
camp with a view to restoring law and order. During the night he secured
the release of Major Christopher and other officers of rank as well as the
civilian personnel who had been detained by the mutineers. Lt Col Serrette
was promoted to the rank of Colonel the following day and appointed Officer
Commanding the Regiment. At the court-martial the two lieutenants and a

private pleaded the issue of condonation in bar of trial by virtue of s122 of


the Defence Act (2) (d) an offence shall be deemed to have been
condoned by the commanding officer of a person alleged to have
committed the offence if, and only if, that officer or any officer
authorised by him to act in relation to the alleged offence has with
knowledge of all relevant circumstances informed him that he will
not be charged herewith;The allegations in support of the plea of
condonation were that it was through the actions of the lieutenants that Lt
Col Serrette was provided with the opportunity of securing his reappointment to the regiment and having been full informed of all the facts
and circumstances of the mutiny he condoned it by (i) promoting them to
the rank of company commander; (ii) telling them he would not charge them
for any military offence; and (iii) telling them that he would not take any
disciplinary action against them. The pleas were rejected and the appellants
were convicted of mutiny and other offences and sentenced to terms of
imprisonment.

On appeal it was submitted inter alia, that the trial of the plea of
condonation was unfair and that a substantial miscarriage of justice had
occurred. Held - Fraser JA said in military affairs the law, as it now
stands, gives a commanding officer power to condone military offences,
including mutiny, and such condonation is a bar to trial by a court-martial.
The hearing of the plea of condonation was not a fair hearing. The principles
of natural justice were cast aside for no apparent reason; and the Act does
not provide the alternative of a re-trial. Where there is a substantial
miscarriage of justice the Act demand that the conviction be quashedthe
Constitution of this country recognises that men and institutions remain free
only when freedom is founded upon respect for moral and spiritual values
and for the rule of law. As a judge of this court, I am in duty bound to uphold
the rule of law at all times. Appeal allowed.

Lennox Phillips v DPP (PC) [1992] 2 WLR 211:


During an insurrection in Trinidad by a group of which the 114 applicants
were members, the Prime Minister, certain Members of Parliament and other
persons were held captive. In order to secure their release the Acting
President granted a pardon in the form of a general amnesty to all those
involved in acts of insurrection. The captives were eventually released and

the applicants surrendered. They were arrested and detained in custody.


They were arrested and detained in custody. They were charged with
treason, murder and other offences alleged to have been committed while
they were involved in the insurrection. They applied to the High Court
alleging that since they were the beneficiaries of a valid pardon their
detention and prosecution for offences in respect of which the pardon had
been granted infringed their right to liberty and security of the person and
the right not to be deprived thereof except by due process of law afforded by
section 4(a) and their right under section 4(b) of the constitution to the
protection of the law. Eight of the applicants also applied to the High Court
for leave to issue a writ of habeas corpus directing the Commissioner of
Prisons to show why they should not be released immediately, alleging that
by reason of the pardon their detention was illegal.

The Court refused both motions; the Court of Appeal upheld this. The Privy
Council held
1. The applicants had established that they were the beneficiaries of a
valid pardon which would render their detention and imprisonment on
charges relating to offences covered thereby unlawful, and it was for the
Commissioner of Prisons and the AG to justify their detention; that,
accordingly, the applicants were entitled to a writ of habeas corpus as of
right so that the lawfulness of their imprisonment could be immediately
determined, and at that hearing the court would have jurisdiction to
inquire into the validity of the pardon even though, of the applicants were
not released, they would be entitled under s32 of the Criminal Procedure
Act to assert the pardon again as a special plea in bar to the indictment
when they were arraigned; and that therefore all the applicants would be
granted leave to issue a writ of habeas corpus. Lord Ackner said their
Lordships have no hesitation in saying that it is in the overall interest of
justice that there should be the earliest possible decision as to the validity
of the pardon, if it is to be challenged.
If the pardon remains
unchallenged or is held to be valid, the unlawful imprisonment of the
applicants will then ceaseA prima facie case having been established
that the applicants were unlawfully detained, it is clearly for the
respondents to make a return justifying the detention.

Convicted Killers

Pratt & Morgan v AG of Jamaica (PC) (1993) 43 WIR 340:


The appellants were convicted in 1979 of a murder committed in 1977 (since
which date they had been detained in custody). Their application for leave
to appeal was rejected in 1980 and the reasons given in 1984. Special leave
to appeal to the Privy Council was refused in 1986. In 1991 the appellants
instituted proceedings under section 25 of the Constitution of Jamaica
claiming that their continued detention under sentence of death contravened
section 17(1)- No person shall be subjected to torture or to inhuman or
degrading punishment or other
treatment. These proceedings were dismissed in the Supreme Court and the
Court of Appeal dismissed their appeal.
Held, advising that the appeal be allowed, (i) that section 17(2) authorised
the passing of a judicial sentence of a description of punishment which had
been lawful in Jamaica before Independence but it was not concerned with
the act of the executive in carrying out the punishment; accordingly, section
17(2) did not itself preclude a finding that the circumstances in which the
executive intended to carry out a sentence were in breach of section 17(1).
(ii) That the execution of the death sentence after unconscionable delay
would constitute a contravention of section 17(1), except where the delay
had been the result of some fault of the accused, e.g. an escape from
custody or the frivolous or time-wasting resort to legal procedures such as
would amount to an abuse of process; but delay attributable to the accused
exploring legitimate avenues of appeal did not fall within such exception.
(iii) That to execute the appellants after holding them in custody and under
sentence of death for nearly fourteen years would be inhuman and in breach
of section 17(1) and their sentence should be commuted to life
imprisonment.
Per curiam. If capital punishment is to be retained it must be carried out
with all possible expedition. Capital appeals must be expedited and legal aid
allocated at an early stage. Although no attempt is made to set a rigid
timetable, the entire domestic appeal process should be completed within
approximately two years. If in any case execution is to take place more than
five years after sentence there will be strong grounds for believing that the

delay is such as to constitute inhuman or degrading punishment or other


treatment.

Catholic Commission for Justice and Peace in Zimbabwe v AG (1993) 2 LRC 279, 314
In this case, which predated Pratt and Morgan, the Zimbabwean Supreme
Court held that a long delayed execution could violate the right not to be
subjected to cruel and unusual treatment or punishment. Per Gubbay CJ
Because retribution has no place in the scheme of civilised jurisprudence,
one cannot turn a deaf ear to the plea made for the enforcement of
constitutional rights. Humaneness and dignity of the individual are the
hallmarks of civilised laws. Justice must be done dispassionately and in
accordance with constitutional mandates. The question is not whether this
court condones the evils committed by the four condemned prisoners, for
certainly it does not. It is whether the acute mental suffering and brooding
horror of being hanged which has haunted them in their condemned cells
over the lapse of time since the passing of the sentence of death, is
consistent with the guarantee against inhuman or degrading punishment or
treatment.

One of the more challenging but enduring aspects of the rule of law
is the insistence that even those who flout the law or seek to
undermine or overthrow the very foundations of the legal system
are nevertheless entitled to the laws protection.

Equality before the law


Fitzpatrick v Sterling Housing Association [1998] 2 WLR 225, 256:
Arthur JS Hall v Simons [200] 3 WLR 543, 560:
The law does not rule unless everyone in similar circumstances are treated
the same. Thus lawyers should be subject to claims in negligence just as
engineers or doctors are. And all families are to be treated the same even if
the partners are the same sex.